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HomeMy WebLinkAbout1981-0651.Ekwall.82-12-05IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the~Employer: Hearing: OLBEU (Gi Ekwall) Grievor .,I - And - . ..~. The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer E. B. Jolliffe, Q. C. Vice Chairman K. O'Neil Member K. W. Preston Member E. J. S. Shilton Lennon Counsel Golden,' Levinson Barristers & Solicitors J. Baker Counsel Hicks, Moriey, Hamilton, Stewart & Storie Barristers & Solicitors June 15, 1982 _. -2- ~DECISION On July 27, 1981, the grievor, Mr. George Ekwall, was' promoted to be Assistant Nanager of Store Number 14 operated by the Liquor Control Board in Toronto. However, slightly less than three months later, on October 23, he was notified by the Director of Store Operations that his performance had been found unsatisfactory and he would be demoted to a Clerk 4 position, ..'?. effective October 26, and would be transf~erred on November 9 to ::L" Store Number 7,~ Toronto. Mr. Ekwall promptly presented a grievance which simply stated: "Was demoted Article 3.2." The provision referred to is 3.2 of-the Collective Agreement between the Liquor Control Board ~. of Ontario and the Ontario Liquor Boards' Employees' Union. In addition to any other rights of grievance under this Collective Agreement, an employee claiming, (a) that his/her pxition has been improprly classified: (b) that he/she has been appraised contrary. to the governing principles and standards: or (c) that he/she has keen disciplined or dismissed or suspnded from his/her employment without just cause, may process such matters in accordance with the grievance procedure provided in this Collective Agreement and failing final determination under such procedure the matter may be processed under Article 21.5(e) of the Collective Agreement in accordance with Section 18 of the Crown Employees Collec- tive Bargaining Act. Another provision --- relied on of course by the employer --- iS Art,icle 16.10, which states: - 3 - In the event an employee &IO has been promoted is unable to &erform the requirements of the position in a satisfactory manner within a period not exceeding three (3) months from date of appointment, the employee shall be reclassified by the Boards to the employee's previous classification. In brief, submissions for the griever are that there is an onus on the employer to prove his services were unsatis- .~ factory, and that no valid reason has been given for demotion. I The employer's position is that the ~qrievor, as assessed by his Manager, Mr. A.W. b;l'i.ver, and by the District Supervisor, Mr . H.S. Scowcroft, did not measure up to the requirements of the position to which he had been promoted and which he occu- pied during a trial period of about 12 weeks. At the outset of the hearing in this case, counsel for the employer said that, although the matter was not of a disciplinary nature, she was prepared to go first. There being no objection, she called Mr. A.W. Oliver, Manager of Store Num- ber 14 since 1980 after about 15 years of experience with the Board. Mr. Oliver testified that the griever had been a Clerk 4 at the store for several years and was therefore famil- iar with the duties required in that location. It is a conven- tional store with about nine employees. When Mr. Ekwall was promoted, the Manager as~kod.him to supervise the staff in the - 4 - customer area. He was also required to function as Acting Manager during Mr. Oliver's two-week vacation. The grievor was also away for one week, attending an assistant managers' training course at Kempenfelt Bay. The Manager said he noticed the grievor did not assign work to people under his direction, but was "just standing around." As a result, Mr. Oliver had a private conversation with the griever in the basement, pointing out that there was always something for employees to do and that he did not think they were receiving sufficient direction. When asked by Mr. Scowcroft, the District Supervisor, Mr. Oliver replied he was not too pleased with Mr. Ekwall's perfor- mance mentioning "lack of leadership." After a visit to the store by Mr. Scowcroft, the Manager told the griever that the District Supervisor was displeased by his observations. On October 19, Mr. Oliver wrote Mr. 3. Jennings, Director of Store Operations, with a copy to Mr. Scowcroft, Exhibit 3. It was as follows: I feel that Mr. G. Zkwall is unable to fulfili the requirements of his new position, and I believe that he needs more training in assigning jobs, handling men and showing authority. I also feel that he could show more initiative and interest in his work as well. , . -5- The grievor had previously served for over five years as a Clerk 4 at Store 14, his duties including those of bookkeeper, working in association with the Manager. In cross-examination, Mr. Oliver identified Exhibit 4, which is . . his appraisal of Mr. Ekwall as a Clerk 4, made on January 20, 1981 --- approximately six months b~efore the promotion. In r: -it he rated Mr. Ekwall "S" (for-satisfactory) in all cate- gories, with no other comments. That appraisal was signed by Mr. Ekwall and also the District Supervisor, Mr. Scow- croft, who indicated his concurrence. Mr. Oliver confirmed that when he was away, the griever (while a Clerk 4) filled in as Acting Manager. This, he said, would occur about once a month from 6 p.m. to 9 p.m. The Manager also conceded that he.had not noticed any problem arising during his absence on vacation when Mr. Ekwall was Acting Manager. Mr. Oliver said a second conversation about perfor- mance occurred about a week before October 19. It was then :that he told the grievor Mr. Scowcroft had been displeased with observations made on his visit. For example, he had noticed two employees engaged in a private conversation, and one shining his shoes, during working hours. - 6 - . According to Mr.'Oliver, he was not consulted about the demotion and assumed it had been made by the Store oper- ations people." He summed up his view of the griever by‘say- ing "he seemed to think the Assistant Manager just walks around. My idea'was that he should be giving the men work to do." The District Supervisor, Mr. H.S. Scowcroft, has had 23 years of experience with th.e Liquor' Control Board. He observed the griever only once during the period in question: on Friday, October 2, between 5 p.m. and 6.30 p.m. When he arrived, the griever was in the lunch-room at the back of the store and there were three or four employees in the office, one of them shining his shoes. He said "they dispersed when I arrived. It gave me cause for concern." It seemed to him that supervision by Mr. Ekwall was lacking, but Mr. Scowcroft did not speak to him, being there "only for observation".' On i the following day he spoke to Mr. Oliver and related his exper- ience. He said that if the griever had shortcomings he should be advised of it, but "I gave no instructions other than to write an honest assessment." He then identified,his letter of October 22, Exhibit 5, addressed to Mr. J.E. Jennings, Director of S.tore Operations: tMr. G;' Ekwall is not fulfilling the requirements of an Assistant Nanager since his appointment July 27/N. ,: -7- . I had the opportunity to observe 1Mr. Dtwall Qerform, as an Assistant on his own on Crtober 2/81. I question his lack of authority on this occasion brought to Managers attention the following day. Mr. Ekwall in the Managers opinion has not shown leadership qualities or initiative ~that are necessary .reguisites for.an Assistant Manager. Manager Oliver has spoken to Wr. Ekwall prior to writing assessment regarding his job Qerformance as an Assistant however he did not receive the desired results. Wr. Ekwall upon direction will complete given assign-. rents but is of little value as an Assistant to the Manager in managing the store under these circumstances. According to the witness, such a letter would be re- ferred to "the Management Committee." He said he had not been .~., on the promotion committee, but he received l.ater in October a copy of Mr. Jennings'letter to the grievor, Exhibit 6. In it, after quoting Article 16.10 of the Collective Agreement, Mr. Jennings wrote: I have received written assessments from your store manager and District Supervisor and both have assessed your job performance as unsatisfactory for an Assistant Manager. Accordingly,. you will be demoted to the position of a Clerk Four effective Monday, October 26, 1981 and your annual salary will be adjusted to $21,135. in November 9, 1981 you will be transferred to Store 87 Toronto. ~.;.:. Cross-examined, Mr. Scowcroft could not produce a job description for the post of Assistant Manager but said he was sure what the duties are. He described them as fol lows : ,. ’ -a- l) The Assistant Manager takes over from the Manager in the latter's absence. 2) He has certain responsibility for cash received by the cashiers. 3) He is responsible for supervising the sales clerks. 4) He has some responsibility for store maintenance and customer service. Mr. Scowcroft said he had approved Exhibit 4 but also referred to Exhibit 7, the appraisal made of Mr Ekwall inl980, which is much less favorable than the 1981 appraisal Made on January 22, 1980 by the Manager at that time, Mr. Bonnett, it rated the grievor "average" in all categories and also made the following comments: Performing the requiredfunctions of tis classificationade- guately. Must show an improvement in initiative and leader- ship at this level if he is to be considered for promotion. Receiving maximum salary. Recommend: No change at this, time. That appraisal was also approved by Mr. Scowcroft. Nevertheless, Mr. Scowcroft also approved the 1981 appraisal, recommending promotion on the basis of Mr. Oliver's evaluation. . . . -9- The only other witness was the griever himself. He had been employed since September, 1966, including more than five years as a Clerk 4. In that capacity, he often acted as Assistant Manager, particularly at nights when the Manager was absent, and of course during the Manager's vacation. In such circumstances he was responsible for cash receipts and also for the sa,tisfaction of customers. The only instructions he received .as Assistant Manager were to keep his sales clerks active by giving them work to .do. In his opinion, he had carried out such duties as instructed. :. Mr . Ekwall agreed he had been spoken to twice about his performance. On the first occasion, there was a conversat-' ion in the basement with Mr. Oliver, who h,ad said the day before that he wanted the basement cleaned up. The griever was showing a casual employee what to do when the Manager came down and said "the .fellows are standing around upstairs." According to him, Mr. Oliver did not mentioti any general prob- lem but simply referred to the situation at that moment. The second talk was in the office. Mr. Oliver said he would have to send in a letter, reporting the grievor's work to be unsat- isfactory. The grievor simply commented:"Do what you have to do." In that same week he received Exhibit 3, Mr. Jennings' letter whereby he was demoted. The grievor insisted that - 10 - problems about the staff had never been discussed with him ~. ..~ by the Manager except once in the basement and later on the Tuesday prior to the demotion. Referring to the Scowcroft visit of Friday, October 2, the grievor said there was a supper-hour between 4.30 p.m. and 5.30 p.m., the arrangement being that one-half the staff at a time would go to the lunch-room, since they were to work, later that night. ,The grievor could not recall that Mr. Oliver ever mentioned the Scowcroft visit to him. However, he did have "an i~dea" a demotion might be in the wind when the Man- ager talked to him late in October: Cross-examined, the grievor insisted Mr. Oliver's first conversation with him was more than a month after he took the new.job. He admitted being aware of the fact that he was on trial for three months. Mr. Oliver did not tell him ..until late in October that he was sending in a.letter reporting his services to be unsatisfactory. Referring to the promotional practices of the board--~ Mr. Ekwall said: “My experience was that some showing initia- tive get ahead fast --- others don't. I've applied regularly for promotions since 1971 but was always by-passed." Asked why ” - 11 - he had not sought reasons his performance was considered unsatisfactory, the grievor said: "Everybody has their own opinion. Mine is not the question. I did not ask him for reasons. If he felt I was unsatisfactory, he's the captain. I don't question management's decisions. It would be quest- ioning his authority if I asked why." .: ._ The griever insisted that he,could not recall discussing the Scowcroft visit with Mr. Oliver, and said: "We could both have defective memories --- but Mr. Oliver did not tell me of.Mr. Scowcroft's attitude." The grievor also said that because he had served as Clerk 4 with the former Assistant Manager, Mr. G. Blyth, for more than five years, he could understand what the requirements of the position were, and thought himself qualified "to follow in Mr. Blyth's footsteps." In argument, Ms. Baker, counsel for the employer, referred to cases indicating that in a non-disciplinary de- motion the appropriate standard is not that of just cause, and the onus of proof is therefore on the grievor rather than on the employer. She cited Toronto Hydro (1972) 24 L.A.C. 334 ? and Anson General Hospital (1975), 10 L.A.C.'(2d) 1972, both decided by Prof. Brandt, which (with many other cases) are noted at pages ,255. and 256 of the Brown & Beatty' text. 1 Brown and Beatty, "Canadian Labour Arbitration" (1977), Canada Law Book. - 12 - The only real issue, counsel said, was whether the power to demote had been exercised in an arbitrary or discrim- inatory way. She suggested that much of. the griever's testimony was self-serving. Apparently, he did not think pro- motions were being handled correctly by the Board. There was no suggestion he had failed to receive training or instruction in the duties of his position; in any event he was familiar with them f,rom his experience with Mr. Blyth. In the opinion of those who observed him, he did not carry out his duties satisfactorily, the principal weakness being that he failed to keep employees under his supervision actively occupied. He must have known of the problem, because it was brought to his attention by the Manager on two occasions during the trial period. He had considerable experience with the Board, includ- ing more than five yearsas a Clerk 4, during which he had sometimes acted as an Assistant Manager and had 'every reason to know what was required. In her argument, Ms. Shi lton Lennon said that the warnings said to have been given were not adequate. On t.he first occasion there was merely a specific remark about the employees upstairs at the time;. As for the Scowcrof'tvisit, the grievor was not on duty at the time and could not be held responsible for what other employees were doing in the Manager's office. The last occasion was only about two weeks before the . i - 13 - end of the probation period, when the Manager had already made up his mind. There was no doubt that in a general way the grievor knew what he was supposed to do. It was significant that there were no complaints about his work when he was Acting Manager in the absence of Mr. Oliver. Counsel also argued that the grievor had fully es- tablished his qualifications for promotion, his last.appraisal in January, .1981, having been very favorable. It was implicit in Article 16.10 that there had to be a drastic reason for de- motion. To serve "'I in a satisfactory manner" represented an objective standard. In her submission the case law demonstra- ted that the employer must bear the onus of proving that the performance was unsatisfactory. In reply, Ms. Baker said the cases which had been cited to not support the doctrine that the onus is on the em- ployer where there are no reasons ~for discipline and perfor- mance is found to be unsatisfactory. In any event, she con- cluded cases cited by.Ms. Shilton~ Lennon could be easily distinguished. The facts in this case are clear and may be summar- ized as follows: In January, 1980, after serving more than - 14 - three years as a Clerk 4, the grievor received an average rat- ing from his Manager at that time, which was accompanied by a recommendation that there be "no change." One year later the new Manager, Mr. Oliver, gave him a satisfactory rating in all categories but with no recommendation for change. Six months later he was promoted to be Assistant Manager at Store Number 14, succeeding Mr. Blyth, who had been transferred and pro- moted. For the next 12 weeks he was observed on most working days by his Manager, Mr. Oliver; who did not think he gave sufficient direction to employees he was supposed to supervise. The impression was confirmed during a visit by the District Supervisor, Mr. Scowcroft, who found at least three employees idle in the Manager's office while the Assistant Manager was in the iunch-room. The grievor received very little instruct- ion or direction in what he was supposed to do. He received only two admonitions, the second being too late to have any significance. On the other hand he possessed ample experience, because he had worked with the former Assistant Manager and replaced him on previous. occasions. There is no'evidence what- ever that the employer found any misconduct on the part of the : grievor. His demotion cannot be considered as a form of disci- plinary action. The only evidence is to the effect that the de- motion is the result of an opinion formed by the Manager and the District Supervisor that his performance asan Assistant Manager was unsatisfactory. : I - 15 - The griever in the course of his testimony made a curious statement to the effect that employees who showed initiative made rapid advancement; others did not. He implied this meant there was something wrong with the promotional system. It does not seem to have occurred to him that if he had shown more initiative himself or exercised more leader- ship he would not have been demoted after 12 or 13 weeks in his new position. One of the cases mentioned by co~unsel for the grie- vor was Loblaw Groceterias Co. Ltd., (1972) 24 L.A.C. 246 (O'Shea). That, however, was a case in which the arbitrator expressly found that the demotion had been disciplinary in nature and he substituted another penalty for the demotion. It bears no resemblance to this case. Another authority cited, also dating from 1972, is Riverdale Hospital, 2 L.A.C. (2d) 178 (Rayner). In that award the majority held that "what the Hospital really attempted to do here was to impose demotion as a form of discipline.." The majority also expressed (at page 182) the following opinion. 'Ike primary decision to assess the employee's ability.lies with management. If an employee is undergoing a probationary period, then, in most instances, management's right to assess is not subject to review. - 16 - The case has little relevance here because the River- dale agreement contained no such provision as what is found in Article 16.10 of the applicable agreement between the Liquor Control Board and the Liquor Boards Employees'Union. We were also referred to Goodyear Canada Inc. (1977) 14 L.A.C. (2d) 340 (Burkett). There the Board made the follow- ing statement at page 347. 'ihe Board is compelled to find that the Company in singling out the griever for punishment, discriminated against him.. There was evidence that the griever's responsibility for defective products was shared by other members of the crew in which he worked. We think the case has little or no bearing on the issue before us at this time. We are obliged to conclude that the gr,ievor was ,assessed by his Manager and the District Supervisor to be per- forming unsatisfactorily the duties of his new post as Assist- ant Manager and that there was no other reason for the demotion. The Manager had ample opportunity .almost daily to observe his c‘:‘ ;. work and certainly could have admonished the grievor more freq- uently. Nevertheless, there was- --- inview of the griever's - 17 - past~experience at the same location --- no excuse for his failure to exercise the degree of supervision or to give the leadership which he must have known was expected of the Assist- ant Manager. It may well be that his services as a Clerk 4, particularly as a bookkeeper;had been entirely satisfactory .~ in the period leading up to January, 1981, but it does not follow that he. would possess the qualities required of a super- visor. Although within the.bargaining unit, we think an Assist- ant Manager is a supervisor in the correct sense of the word, and we are obliged to find that being a supervisor was beyond the capacity of the grievor at the time. Article 16.10 in the Collective Agreement makes it perfectly clear"that promotions are subject to a probationary period of three months. The provision would be meaningless if it were impossible for a Manager and the District Supervisor to determine to the best of their ability whether performance is satisfactory or unsatisfactory. It might be a different <I. matter if demotion occurred after the probationary period. In fact, however, it was made known to the griever at least three days before probation expired. - 18 - For reasons heretofore given, the grievance cannot succeed and must be dismissed. DATED at Toronto, Ontario, this 29th day of September,.l982. "1 dissent" (see.attached) K. O'Neil, Member X. M. Preston, Hcmbcr 7: 3546 EBJ:,jce DISSENT I find I must dissent strongly from the award of the majority. 'My disagreement with the majority focusses on two areas: 1. The award is premised,on the finding of a kind pf' probationary period for promotions, which, on the .face of the contract, the parties have not negotiated. 2. The award dismisses the argument that the demotion should be,characterized as disciplinary. However, there is insufficient evidence of inability, the only other way the demotion could be justified, to make out even a prima facie case of non-disciplinary or "pure demotion". On either characterization; there was insufficient evidence to support the actions of the employer, and therefore the grievance should be upheld, no matter the characterization arrived at.~ 1. Probationary Period In ciscussing the basis for the-dismissal of the grievance, the award says: "Article 16.10 in the, collective agreement makes it perfectly clear that promotions are subject to a probationary period of three months." To my mind, th~is is an interpretation of the collective agreement which it cannot reasonably bear. The collective agreement makes very specific use of the term "probationary period" and it is clear that it refers to something quite different than the three month period set out in article 16.1O.The provisions Of the collective ahreement which.refer to a probationary period (1.4, 6.1, 11.1, 16.5 and 22.1) show clearly that the parties use the term "probationary period" as a pre-condition for certain provisions of the collective agreement to apply.~ It is clears that the qrievor had passed'hi~s probationary period, particularly since he was allowed to apply for, and was granted the position of Assistant Manager. This would not have been open to a probationary employee. There would have to be clear language giving the employer the right to a second period of probationary assessment for the concept to have any application in this case. - The length of the probationary period for employees of the Crown is a matter of statute'under The Public Service -Act. s. 6(2) and regulations made pursuant to s. 30(l). It is significant that the employer never argued that the grievor was a probationary . . employee; as well it could not have, since it had COnSldered nun for the vacancy of Assistant Manager in the first.place. -2- Article 16.10 of the colle'ctive'aqreement.has a very straiqht- forward effect. It provides that if an employee is unable to perform the requirements of the position in a satisfactory manner within a period not exceeding three months, the employee shall be reclassified by the Board to the previous classification. It is a guarantee, that in the case of inability, something beyond the employee's control, the employee will not find himself in a worse position than he would have been in had he not applied for ~the position. It is not a probationary period. The meaning of article 16.10 is thus quite clear. The manager and the district supervisor are entitled to determine whether or not the employee is able to perform the duties of the job to which he was promoted, using some objective standard, which will be jodqed on the normal standards of the arbitral jurisprudence relating to demotions, not on some lighter probationary standard. The evidences discloses.no objective standard used by the employer at all.,Indeed, it only discloses an impression gained on quite scanty evidence of any specific behavior on the qrievor's part. There is no suggestion that either the manager or the district supervisor actually thought the qrievor was unable to do the job. They only thought that he was not doing so on the occasions testified to. Indeed, the thrust of the evidence is that they thought he~would be able to do the job, if he would only pull up his socks. More will be said of this below. 2. Characterization of the Demotion The seconds and overlapping major areas of concern is the matter Of the characterization of the demotion and the effect that has on the conclusions drawn in themajority award. The awArd concludes that.the demotion cannot be considered as a disciplinary demotion, since the employer presented no evidence of misconduct on the qrievor's Dart. Indeed, it.might be said that the only evidence. of any misconduct was possibly of other employees than the qrievor. The evidence negatived misconduct and the employer did not seek to characterize the actions as misconduct. Therefore, there could not have been just cause ,for discipline. With this much I agree. However, as the award points out the only evidence is that, the demotion was as the result of an opinion formed by the manager and the district supervisor that the griever's performance was unsatisfactory. If the demotion was not disciplinary, the only other acceptable ground in the jurisprudence is incapacity, or being "unable" in the words of article 16.10,; The collective agreement does not read:- ,.."In the event that an employee who has been ,, promoted does not uerfu'the reauirements -.. of the position in a satisfactory manner.*."* : \ ;r I . -3- Instead it reads, "In the event that an employee who has been promoted is unable to perform the requirements of the position in a satisfactory manner..." This requires a finding of inability by management and by this Board. It would be my,finding that there is simply not sufficient evidence that the grievor was unable to perform the requirements of the job. Certainly we were presented with no evidence of any reasonable standard of assessment used by the employer on which we could base such a finding. Therefore, there is no evidence that the employer was acting reasonably in its finding of inability, or that it used any objective standard. Reference may be had to the case of Re Labatt's and Canadian Brewery Workers,29 L.A.C. (2d) 275, -. as well as the cases araued before us. for-the urooosition that _ - there,are only two kinds of demotion,.disciplinary and non- disciplinary. The latter, to beg upheld, must be shown to be on the basis of incapacity, or inability 'of the employee to do the work. The Board in the Labatt's case, which referred to a number of incidents of poor workmanship..on the part of a mechanic, while not disputing the insufficiency of the work on the occasions in question found as follows (at p. 279-80): "In fact, each of the four major incidents which were the subject of the incidental reports suffer from the same deficiency. None of them in my opinion unambiguously points to the grievor's incapacity to perform up to the standards expected.... In sum, (p. 280) in my opinion there was nothing in the testimony of-his supervisors which could support the allegation that whatever errors and deficiencies occurred in his work could be attributed to his lack of capacity. And without this link, the employer would not have just cause to demote him in a non-disciplinary way." In the Labatt's case, there was more evidence of the grievor's actual experience in the job, and the case was perhaps somewhat easier to decide because of that. Howe&r, the principles enunciated there are soundand should be clearly applicable to the case before us as well.~ When applied without the idea that there wasaprobationary period in question and therefore some lighter standard of review coming into play, the result in the case at hand should be the same. There is simply no evidence as to the causation of the unsatisfactory (to the supervisors) performance that could in any way be li&d to incapacity, or - -4- inability, in the words of article 16.10,of the grievor to do the work of the assistant manager. Indeed, there is much evidence that he did the work, both as acting assistant manager before the promotion, and during the vacation of Mr. Oliver, with no problem at all. The employer's evidence falls far short of showing incapacity. Oliver said he wasn't "lOO%,satisfied", that he.wanted him to show more~"initiative and leadership", the obvious implication being that he thought he could do that if he would put his mind to it. One of the incidents that Oliver testified to was the one related~to him by the district supervisor where, some employees were engaged in private conversation and one was shining his shoes. There is no evidence of a connection between this and any in- capacity on the grievor's part. Indeed, the grievor may have been on supper break at the time. was responsible, at worst, Even if accepted that the qrievor it would be evidence of misconduct, and the question would become whether or not demotion was an appropriate disciplinary penalty. Mr. Snowcroft's evidence only relates to the one time he was in the store, during which he did not even establish whether the grievor was on supper break. He can hardly have been using an objective standard of assessment if he was not even sure if the grievor was on 'duty. That the other employees dispersed when he came in is surely no evidence going to the griever's capacity. The only other specific occasion complained of by the employer was the occasion.when Oliver spoke. to Ekwall in the basement. At that point the uncontradicted evidence of the grievor is that he was assigning work to a man in the basement. In addition, .the yrievor's evidence is that Oliver did not refer to a specific problem, but just that at that particular time, men were standing around upstairs. On the second occasion that Oliver spoke to him, when Oliver said there would be an unsatisfactory assessment, no further incidents were alluded to. This is simply not enough evidence to find incapacity on the part of the qrievor. The award dismisses the applicability of the cases argued on the grievor's behalf. I cannot agree with the conclusions drawn about those cases. The award seeks to distinguish the .Loblaw’sicase on the basis that the demotion in.~that case was disciplinary. In fact, the case has great bearing on the one before us, in that the employer in that case, as well as this one, argued that it was not a disciplinary matter. However, the Board, chaired by~O'Shea, found that the evidence did not support a finding of incapacity. Rather, they found it to be a case of misconduct for which 1. Re Union of Canadian Retail Employees and Loblaw Groceterias, 24 L.A.C. 246 -5- responsibility needed to be assigned. The case therefore was characterized as disciplinary, even though the employer argued otherwise. This is precisely the result argued for the grievor here. I would make a' similar finding in this case, that the action of the employer was actually disciplinary, but thatjust cause for a'disciplinary demotion had not been made out. Again in the Riverdale Hospita?case, the general principles are similar and should be held applicable~ to this case as well. The presence of article 16.10 in the collective agreement does not oblierate the operation of these general principles. Indeed, 16.10 can be seen as an articulation of the incapacity rule. The draft award also suggests that the Good ear3 case is inapplicable because the finding in that case was one o +%ZZriminatory app~lication of the standard. .Althouqh'we do not have a case of discrimination before us, other features of the award are directly relevant and should not be ignored by this Board. In particular, at p. 344, there is a very relevant passage: "Then standards which must:be met in order to sustain a management decision to demote will depend upon whether the response is characterized as disciplinary or non-disciplinary. In order 'to sustain a nonrdisciplinary demotion an employer must establish, first that the employee is unable to perform or is unsuited to his job and secondly that the inability or unsuitability stems from some involuntary shortcoming (i.e. some mental or physical defect). . ..If the employer cannot establish that the employee'~s unsatisfactory per- formance is the result of some involuntary short- coming, then it must be assumed that the unsatisfactory performance is.,subject to a corrective response and as such must be characterized as disciplinary: see McGraw Hill,, 5' L.A.C. (2d) 391 (O'Shea)" The evidence simply does not exist that there was some involuntary shortcoming affecting the grievor's ability to satisfy his supervisors; _ In addition, there is no evidence of any objec,tive standard, as required by the cas'e law. See, in addition to the cases argued before us, the recently reported case of Re Sooke Fewest Products and International Woodworkers, 3 L.A.C.(3d) 252, copies of which are enclsed. -. ,,.. 2.Re Riverdale Hospital and C.U.P.E., Local 79 2 L.A.C. (2d) 178 (Rayner). 3. Re Goodyear Canada, Inc.:and United Rubber Workers, Local 232, 14 L.A.C (2d) 340 1 :.: ,.t 6. .: In sum, it would be my award that the demotion grieved herein cannot be justified accoring to either of the traditional modes of acceptable demotion - disciplinary, with just cause or "pure", with evidence of inability. There was simply no evidence before this board of misconduct, or or incapacity. .';~, I would have allowed the. grievance.